Effective Date: June 14, 2022
Please read these Terms of Service (“Agreement”) carefully because they govern the use of our websites located at https://www.trexgroup.com and http://trexanalytics.com (collectively, the “Site”), and the services offered in connection with Site (the “T-REX Platform”), by you, who is either (a) the person or entity that uses, accesses and/or registers for use of our Site, (b) the person or entity that uses, accesses and/or registers for use of the T-REX Platform as a Third Party User (as such terms are defined below), or (c) the Customer that has authorized you to use, access, or register for access to the T-REX Platform for its benefit as a Customer User (Third Party Users and Customer Users shall hereinafter be referred to in either case as “you” or “your”), and governs your access to and use of the T-REX Platform.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND T-REX. BY USING ANY PORTION OF THE SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE SITE. IF YOU ARE ACCESSING AND USING THE SITE ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY.
CLICKING ON THE “I ACCEPT” BUTTON INDICATES THAT YOU CONFIRM EACH OF 1-5 ABOVE, AND ACCEPT AND INTEND TO BE BOUND BY THIS AGREEMENT, AND CONSENT TO ENTER INTO THIS AGREEMENT IN ELECTRONIC FORM. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT REGISTER FOR OR USE THE T-REX PLATFORM NOR CLICK “I ACCEPT.”
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND T-REX THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY THE “DISPUTE RESOLUTION” SECTION BELOW FOR DETAILS REGARDING ARBITRATION.
We may modify this Agreement from time to time, in which case we will post a new version on this site and update the “Effective Date” above, and changes to this Agreement are effective when posted to the Site. Your continued use of the Site and/or the T-REX Platform following the posting of any changes constitutes your acceptance of such changes, and if you do not agree with these changes, you must immediately stop using the Site and/or the T-REX Platform. Because our T-REX Platform is evolving over time we may change or discontinue all or any aspect of the T-REX Platform, at any time and without notice, in our sole discretion.
“Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws are currently in effect or later come into effect during the term of this Agreement.
“Customer” means an individual or legally recognized entity that has entered into a software services subscription agreement with T-REX (the “Subscription Agreement”) pursuant to which you may be provided with access to the T-REX Platform.
“Customer Effective Date” means the effective date of the Subscription Agreement.
“Customer User” means you, if you are an employee or agent of a Customer (but not a Third Party User) and (i) are authorized by Customer to access and/or use the T-REX Platform for Customer’s business purposes in accordance with the Subscription Agreement; and (ii) for whom a password-protected account for use of the T-REX Platform has been created by or on behalf of Customer.
“Customer Data” means all non-public raw data in its original form as provided by Customer or you, or otherwise on Customer or your behalf, for use on the T-REX Platform as described hereunder.
“Data” means collectively, Customer Data and T-REX Data.
“Deal Information” means information made available by a Customer, Customer User, or a Third Party User through the T-REX Platform for viewing by you, Customer, and Third Party Users, which may include offering memoranda, indentures, offering circulars, private placement memoranda or other offering documents. Deal Information may include Customer Data.
“Subscription Period” means the term of Customer’s subscription to the T-REX Platform, pursuant to the terms of the Subscription Agreement.
“Third Party User” means you, if you are a person or entity authorized and invited by T-REX to access the T-REX Platform, or by a Customer to view such Customer’s Deal Information through the T-REX Platform.
“T-REX Data” means any data generated or calculated through the T-REX Platform including without limitation, information and insights generated from, derived from, appended, extrapolated from, modified, altered, transformed, compilated or otherwise adapted or enhanced from any Data by T-REX in accordance with this Agreement. T-Rex Data includes any data models created, calculated, or developed by T-Rex using Deal Information and any underlying data architecture, i.e. the data infrastructure, schema, rules, components, specifications, methods or processes and components that dictate how data interacts and is organized, calculated or translated from various sources into one or more meaningfully defined data models and related security protocols as integrated and applies at each stage of data processing.
“T-REX Platform” means T-REX’s proprietary risk analysis application including without limitation, any SDKs, APIs, and other software, including source or object code, made available to Customer and Third Party Users, and any T-REX Data, as the foregoing may be updated, developed, enhanced or otherwise improved by T-REX in its discretion from time to time.
2. Scope of Rights and Restrictions.
2.1 T-REX Platform. T-REX hereby grants you the revocable, non-exclusive, limited, non-transferable right to access and use the T-REX Platform, solely in object code form, via T-REX’s internet-hosted web site for business purposes solely in strict accordance with this Agreement. If you are a Customer User, then your use of the T-REX Platform is also subject to the corresponding Customer’s compliance with the terms of the Subscription Agreement, and you may use the T-REX Platform solely (i) for the associated Customer’s own internal business purposes, and (ii) for the term of such Customer’s Subscription Period. If you are a Third Party User, your use is subject to the terms of this Agreement.
2.2 Feedback. We welcome feedback, comments and suggestions for improvements to the Site and/or the T-REX Platform (“Feedback”). To the extent you provide Feedback, you assign all right, title and interest in and to such Feedback to T-REX. If for any reason this assignment isn’t valid, then you grant to us an irrevocable, transferable and sub-licensable (through multiple tiers), worldwide, perpetual, fully-paid, royalty-free license, to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any lawful purpose.
2.3 Use of Customer Data or Deal Information. In consideration of your use of the T-REX Platform, you hereby grant to T-REX, its parents, subsidiaries, affiliates, licensees, designees, and successors and assigns the right to use Customer Data (including Deal Information) to (i) provide the T-REX Platform and related services to you and if applicable, Customer; and (ii) use the Customer Data (including any Deal Information) to generate T-REX Data; and (iii) enable T-REX to allow other Customers, Customer Users, and Third Party Users the ability to access and use Deal Information within the T-REX Platform for their own business purposes, subject to such Customer, Customer Users or Third Party’s adherence to the applicable terms of this Agreement.
2.4 Restrictions. You agree not to use or allow others to use, the T-REX Platform (and as applicable in each case below, any Data or Deal Information) in any manner outside of the T-REX Platform except as otherwise expressly allowed in this Agreement including without limitation, in Section 2.3 above; Without limiting the foregoing, you expressly agree not to do the following with respect to the T-REX Platform (and any Data or Deal Information as applicable) (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the T-REX Platform or its structural framework, (ii) sublicense, subcontract, translate or sell any rights to the T-REX Platform, (iii) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the T-REX Platform, (iv) harvest or collect information about or from other users of the T-REX Platform (v) probe, scan or test the vulnerability of the T-REX Platform, nor breach the security or authentication measures on the T-REX Platform or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the T-REX Platform (vi) modify or create derivative works of the T-REX Platform, (vii) attempt to gain unauthorized access to the T-REX Platform or its related systems or networks, (viii) use the T-REX Platform in whole or in part for any illegal or other purpose except as expressly provided under this Agreement (including without limitation allowing any distribution or sublicense of the T-REX Platform or other access to the T-REX Platform by any person or entity that is not an Customer User, or processing Data using the T-REX platform on behalf of third parties or any affiliated entities, or (ix) facilitate or encourage any violations of this Section 2.3. You further agree to (a) take all reasonable precautions to prevent unauthorized or improper use of the T-REX Platform, (b) not interfere with or disrupt the integrity or performance of the T-REX Platform, (c) not attempt to gain unauthorized access to the T-REX Platform or its related systems or networks, (d) not create Internet “links” to the T-REX Platform or “frame” or “mirror” any content therein; (e) You expressly agree that your access to the T-REX Platform will not be used in connection with the development of any product or service that is in competition with the services provided by the T-REX Platform, nor will you assist or facilitate any third party in any such use.
Except as otherwise provided including in Section 2.3 above, neither the T-REX Platform nor any other Data or Deal Information (except for any publicly available information), transmitted to you in connection herewith can be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever outside of the T-REX Platform. Any forwarding, distribution or reproduction of the T-REX Platform, Data or Deal Information in whole or in part outside of the T-REX Platform is unauthorized. The T-REX Platform, Data, and Deal Information is being provided on a confidential basis and may not be reproduced in whole or in part, or transmitted to third parties outside the T-REX Platform without the express written consent of T-REX. The T-REX Platform is the sole property of T-REX. T-REX reserves the right to shut down or terminate and withdraw any Data or Deal Information on the T-REX Platform at any time, for any reason.
2.5 Security. You expressly agree to ensure the confidentiality and security of your account ID, password, and access to the T-REX Platform. If any administrative account ID or password is stolen or otherwise compromised, you agree to immediately change the password and inform T-REX of the compromise. You acknowledge that the responsibility for all Data, Deal Information, text, information, messages and other material submitted by you or otherwise on your behalf to the T-REX Platform lies solely with you. You (and if you are a Customer User, the corresponding Customer) are solely responsible for the integrity and quality of Data, and for maintaining an appropriate backup thereof. T-REX may change the authorization method for access to the T-REX Platform if it determines in its sole discretion that there are circumstances justifying such changes. T-REX is not responsible for loss of any Data, Deal Information or other information or data in transmission or improper transmission by or on behalf of you, Customer or any other Third Party User.
2.6 Third Party Services. Certain features and functionalities within the T-REX Platform as we determine in our sole discretion may include or otherwise also allow you and other holders to interact with, access and/or use compatible third-party services, products, data, technology, websites and content (collectively, “Third Party Services”) through the T-REX Platform. You agree that T-REX does not provide any aspect of the Third Party Services and is not responsible for the accuracy of such Third Party Services nor any compatibility issues, errors or bugs in the T-REX Platform or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto.
2.7 Equipment. As between T-REX and you, you are responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the T-REX Platform, and for paying any associated third-party access expenses.
3. Suspension of Access. You agree and acknowledge that T-REX may immediately suspend your access to the T-REX Platform at any time, without notice to you and without liability, and T-REX shall have the right to withdraw or have returned any Data or Deal Information at any time in its sole discretion. If you are a Customer User or a Third Party User, if your access is suspended by T-REX, you agree that your sole recourse, if any, shall be to contact the applicable Customer. You agree and acknowledge that T-REX has no obligation to retain any Data or Deal Information unless otherwise agreed to in the Subscription Agreement. If you are a Customer User, you also agree and acknowledge that Data may be irretrievably deleted including without limitation, if the applicable Customer’s subscription is terminated. Without limiting the foregoing, T-REX may immediately suspend your access to the T-REX Platform at any time, without notice and without liability (i) if T-REX suspects or receives notice that the T-REX Platform or the use thereof actually or allegedly infringes or violates any third party’s rights or violates any Applicable Laws or (ii) if T-REX determines, in its sole discretion, that any improper activity or potential damage may impact the T-REX Platform (or any other T-REX product or service).
4. Term and Termination.
4.1 Term. If you are a Customer User, the term of this Agreement will commence on the Customer Effective Date and continue through the Subscription Period unless and otherwise terminated in accordance with this Section 4. If you are not a Customer User, the term of this Agreement will commence on the date that T-REX first makes the T-REX Platform available to you and will continue until your access is suspended or terminated by T-REX.
4.2 Termination. T-REX may terminate this Agreement immediately and without notice to you if (i) T-REX determines, in its sole discretion, that you have breached any of the terms of this Agreement, or (ii) for Customer Users, if the corresponding Customer’s subscription is terminated at any time in accordance with the terms of the Subscription Agreement. If you are a Third Party User, T-REX may terminate this Agreement at any time, with or without notice.
4.3 Effect of Termination. Upon termination of this Agreement, your right to access or use the T-REX Platform (including any Data or Deal Information) shall immediately cease and T-REX will have no obligation to maintain, deliver or provide access to any Data. Sections 5 (Ownership), 6 (Confidentiality), 7 (Disclaimers), 9 (Indemnification), 10 (Limitations on Liability), 11 (General) and 12 (Legal Disputes) will survive expiration or termination of this Agreement. Expiration or termination of this Agreement shall immediately terminate all subscriptions and access rights granted to you and as applicable any other party herein.
5.1 Reservation of Rights. All rights not expressly granted to you herein are expressly reserved by T-REX. T-REX will retain ownership of the T-REX Platform, including without limitation, all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, and all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights (whether registered or unregistered) relating to or embodied in the T-REX Platform and any updates, improvements, modifications or enhancements (including error corrections) thereto, and all derivative works thereof. You will have no right, title, or interest in or to the same except the rights expressly granted to you in Section 2.1. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of T-REX’s or its licensors’ existing or future rights in or to the T-REX Platform except as expressly granted in Section 2.1. T-REX trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by T-REX and shall inure solely to the benefit of T-REX. Products acquired for use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS” as defined in DFARS 252.227-7013 and FAR 52.227-19.
5.2 Data. Without limiting the terms of the Customer Agreement, if you provide us with any Customer Data or Deal Information, you hereby grant to T-REX a limited, non-exclusive license to use, copy, distribute and display Customer Data for purposes of (i) providing the T-REX Platform to you (and if you are a Customer User, to the corresponding Customer in accordance with the terms of the Subscription Agreement), and (iii) the right to sub-license and share any Customer Data (including without limitation, Deal Information) with other Third Party Users for their internal business purposes within the T-REX Platform. Notwithstanding the foregoing, T-REX shall be the sole and exclusive owner of all T-REX Data and may use or otherwise share such T-REX Data in its sole discretion.
6.1 Confidential Information. You agree and acknowledge that any and all technical, trade secret, or business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information including without limitation, if you are a Third Party User, any Data or Deal Information, as applicable, which is disclosed to you by T-REX or otherwise accessed by you during the term of this Agreement (the “Confidential Information”) is confidential and proprietary, constitutes trade secrets of T-REX, Customer, or a third party who has authorized you to view such Confidential Information, and, as such is of great value and importance to the success of the T-REX or its Customer’s or third party’s partner’s business.
6.2 Exceptions. Confidential Information does not include information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information.
6.3 Obligations. If you are a Customer User, T-REX’s obligations with respect confidentiality pertaining to your access to and use of the T-REX Platform shall be limited solely and exclusively to the confidentiality provisions of the corresponding Subscription Agreement that apply to T-REX. You agree to maintain as confidential and not disclose (except, for Customer Users, as is permitted in the Subscription Agreement), copy, or use for purposes other than in connection with use of the T-REX Platform as authorized hereunder, the Confidential Information.
You agree to protect the Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. You shall be liable under this Agreement to T-REX for any use or disclosure in violation of this Agreement by your attorneys, accountants, or other advisors or agents. You agree to comply with your obligations under the terms of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 et seq.) and other privacy laws, to the extent applicable, and to cooperate with T-REX at its request in the fulfillment of any such obligations that apply to T-REX. For Customer Users, this Section 6.3 is in addition to, and without limiting, any duties of confidentiality that you may owe to the corresponding Customer.
EXCEPT AS EXPRESSLY SET FORTH IN THE SUBSCRIPTION AGREEMENT, T-REX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SITE AND THE T-REX PLATFORM AND ANY DATA OR DEAL INFORMATION, MATERIALS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. T-REX DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE T-REX PLATFORM, DATA OR DEAL INFORMATION, OR ANY ASSOCIATED SERVICES WILL BE AVAILABLE, ERROR FREE, COMPLETELY SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE SITE AND/OR THE T-REX PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND T-REX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOU ACKNOWLEDGE THAT T-REX IS NOT RESPONSIBLE FOR THE INTEGRITY OF INFORMATION, INCLUDING WITHOUT LIMITATION, DATA AND DEAL INFORMATION, INCLUDING COMPLETENESS, ACCURACY, VALIDITY, AUTHORIZATION FOR USE AND INTEGRITY OVER TIME, AND T-REX SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR LIABILITY ARISING OUT OF THE DATA OR DEAL INFORMATION, INCLUDING ANY MISTAKES CONTAINED IN THE DATA, DEAL INFORMATION, OR THE USE OR TRANSMISSION OF THE DATA OR DEAL INFORMATION. YOU ACCEPT SOLE RESPONSIBILITY FOR, AND ACKNOWLEDGE THAT YOU EXERCISE YOUR OWN INDEPENDENT JUDGMENT IN, YOUR SELECTION AND USE OF DATA OR DEAL INFORMATION AND ANY RESULTS OBTAINED THEREFROM.
NEITHER ACCESS TO THE T-REX PLATFORM, NOR ANY INFORMATION CONTAINED THEREIN INCLUDING DATA OR DEAL INFORMATION, CONSTITUTES AN OFFER OF SECURITIES IN ANY JURISDICTION. THE SECURITIES AS TO WHICH THE DEAL INFORMATION OR DATA RELATES (THE “UNDERLYING SECURITIES”) MAY NOT HAVE BEEN, AND MAY NOT BE, REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND, IF APPLICABLE, THE UNDERLYING SECURITIES MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT TO QUALIFIED INSTITUTIONAL BUYERS IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT.
THE T-REX PLATFORM IS BEING PROVIDED TO YOU AT YOUR REQUEST FOR HYPOTHETICAL, ILLUSTRATIVE PURPOSES ONLY. THE T-REX PLATFORM IS PERSONAL TO THE PROSPECTIVE USER, AND HAS BEEN PREPARED BY T-REX SOLELY FOR YOUR USE IN YOUR EVALUATION OF THE UNDERLYING SECURITY OR RELATED DATA OR DEAL INFORMATION. THE T-REX PLATFORM HAS BEEN DESIGNED TO ENHANCE YOUR UNDERSTANDING OF THE UNDERLYING SECURITY, AND HAS BEEN DESIGNED TO FACILITATE THE CREATION OF MULTIPLE HYPOTHETICAL ILLUSTRATIVE RESULTS OF UNDERLYING DATA IN DIFFERENT PERFORMANCE AND RISK SCENARIOS. THE T-REX PLATFORM IS NOT, AND SHOULD NOT BE REVIEWED AS, A FORECAST, PROJECTION, PROMISE OF FUTURE RETURNS, OR PREDICTION OF FUTURE FINANCIAL OR OTHER PERFORMANCE, REGARDLESS OF ANY RESULTS YOU GENERATE USING THE T-REX PLATFORM. NEITHER THE T-REX PLATFORM NOR ANY RESULTS OBTAINED FROM USE THEREOF CONSTITUTE INVESTMENT ADVICE. INVESTMENT DECISIONS, IF ANY, SHOULD NOT BE BASED SOLELY ON THE T-REX PLATFORM. T-REX PLATFORM IS BASED ON INFORMATION HAS BEEN PROVIDED TO T-REX BY OTHER SOURCES THAT T-REX BELIEVES IS RELIABLE. NEITHER T-REX NOR ANY OF ITS AFFILIATES ASSUMES RESPONSIBILITY OR LIABILITY WITH RESPECT SUCH INFORMATION. T-REX CANNOT ASSURE YOU THAT THE INFORMATION PROVIDED BY THE OTHER SOURCES IS ACCURATE OR COMPLETE.
THERE CAN BE NO ASSURANCE THAT ACCESSING THE T-REX PLATFORM OUTSIDE THE UNITED STATES WILL NOT CONSTITUTE A VIOLATION OF APPLICABLE SECURITIES OR OTHER LAWS. YOU ARE ENCOURAGED TO CONSULT YOUR OWN LEGAL COUNSEL WITH RESPECT TO LEGAL REQUIREMENTS APPLICABLE TO ACCESSING THE T-REX PLATFORM OUTSIDE THE UNITED STATES. T-REX IS NOT MAKING ANY REPRESENTATION TO ANY PURCHASER OF THE UNDERLYING SECURITY REGARDING THE LEGALITY OF AN INVESTMENT IN THE UNDERLYING SECURITIES. YOU SHOULD NOT CONSIDER ANY INFORMATION IN T-REX PLATFORM TO BE LEGAL, BUSINESS OR TAX ADVICE. YOU SHOULD CONSULT YOUR OWN ATTORNEY, BUSINESS ADVISOR, OR TAX ADVISOR FOR LEGAL, BUSINESS, AND TAX ADVICE REGARDING AN INVESTMENTS IN THE UNDERLYING SECURITIES, USE OF THE T-REX PLATFORM.
THE T-REX PLATFORM HAS NOT BEEN RECOMMENDED BY THE U.S. SECURITIES & EXCHANGE COMMISSION (“SEC”), ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR OF ANY OF THE FOREGOING AUTHORITIES APPROVED OR DISAPPROVED OF THE T-REX PLATFORM, OR DETERMINED THAT EITHER IS TRUTHFUL OR COMPLETE, OR SUITABLE FOR YOUR PURPOSES. ANY REPRESENTATION TO THE CONTRARY MAY CONSTITUTE A CRIMINAL OFFENSE.
YOU UNDERSTAND AND ACKNOWLEDGE THAT T-REX HAS BEEN COMPENSATED BY VARIOUS PARTIES IN CONNECTION WITH THE T-REX PLATFORM, INCLUDING CUSTOMERS, INVESTMENT USERS, ISSUERS OF UNDERLYING SECURITIES, INITIAL PURCHASERS AND PLACEMENT AGENTS. T-REX IS NOT PROVIDING INDEPENDENT INVESTMENT OR OTHER ADVICE IN CONNECTION WITH THE SUITABILITY OF THE UNDERLYING SECURITY.
THE T-REX PLATFORM MAY ALLOW ACCESS TO DATA, INFORMATION, OR SERVICES DISSEMINATED BY OUTSIDE DATA SOURCES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, CUSTOMER DATA AND DEAL INFORMATION, WHICH MAY INCLUDE OFFERING MEMORANDA, OFFERING CIRCULARS, PRIVATE PLACEMENT MEMORANDA OR INDENTURES) AND YOU ACKNOWLEDGE THAT T-REX AND ITS SUPPLIERS AND LICENSORS DISCLAIM RESPONSIBILITY FOR THE USE, CONTENT, ACCURACY, TIMELINESS, COMPLETENESS OR AVAILABILITY OF SUCH THIRD PARTY DATA INFORMATION, OR SERVICES AND MAKE NO WARRANTY CONCERNING SUCH INFORMATION. YOU USE SUCH THIRD PARTY DATA, INFORMATION (INCLUDING CUSTOMER DATA AND DEAL INFORMATION), OR SERVICES AT YOUR OWN RISK. T-REX CANNOT ASSURE YOU THAT THE INFORMATION PROVIDED BY OTHER SOURCES IS ACCURATE OR COMPLETE.
IF YOU ARE A THIRD PARTY USER, THEN WITHOUT LIMITING ANY OTHER DISCLAIMER HEREIN, T-REX MAKES CUSTOMER DATA AND DEAL INFORMATION AVAILABLE TO YOU “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER, AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. T-REX IS NOT RESPONSIBLE FOR THE VALIDITY OR ACCURACY OF ANY DATA OR DEAL INFORMATION, OR FOR YOUR USE OF OR RELIANCE UPON DATA OR DEAL INFORMATION, INCLUDING YOUR USE OF THE T-REX PLATFORM FOR PURPOSES OF ANALYZING DATA OR DEAL INFORMATION. T-REX SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, INCLUDING LIABILITY FOR ANY DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES, FOR ANY INACCURACIES, MISCALCULATIONS, MISSTATEMENTS OR OTHER ERRORS CONTAINED IN THE DATA OR DEAL INFORMATION. YOU SHOULD CAREFULLY REVIEW AND INDEPENDENTLY VERIFY THE DATA OR DEAL INFORMATION BEFORE RELYING ON IT IN ANY WAY AND FOR ANY PURPOSE. THE T-REX PLATFORM DOES NOT REPLACE YOUR OBLIGATION TO EXERCISE YOUR INDEPENDENT JUDGMENT IN REVIEWING OR ANALYZING DATA OR DEAL INFORMATION.
8. Representations made by User.
8.2 You understand and acknowledge the content of the Customer Data or Deal Information, if any, including any deemed representations and warranties contained therein.
8.3 T-REX has made no representation or warranty to you with respect to the issuer of the Underlying Securities or the offering and sale thereof, or the Underlying Securities themselves.
8.4 You acknowledge that you have been given the opportunity to ask T-REX questions regarding the T-REX Platform and its functionality, and, in connection with your evaluation of the Underlying Security and your use of the T-REX Platform to evaluate financial information or other data, you had the opportunity to run several scenarios using differing input data.
8.5 You acknowledge that T-REX makes no representation or warranty with respect to the output of the T-REX Platform.
8.6 The T-REX Platform may not reflect the potential impact of all risks relating to the structure, market, additional risk factors and other factors that may affect the value of the Underlying Security.
8.7 T-REX Platform is not, and should not be construed as, a recommendation to buy, sell or hold any security, and should not be construed as investment advice. The Underlying Securities may not be a suitable investment for all investors, and the T-REX Platform may not be suitable for all purposes.
8.8 You acknowledge that (A) you have not relied on T-REX or any person affiliated with T-REX in connection with your investigation of the accuracy of such information or your investment decision, (B) you have reviewed all offered Data or Deal Information that you have requested and that has been made available to you , including the information incorporated therein by reference, and (C) no person has been authorized to give any information or to make any representation concerning T-REX or the Underlying Security, if any, other than as contained or incorporated by reference in the Customer Data or Deal Information and as reflected in the T-REX Platform, and, if given or made, such other information or representations should not be relied upon as having been authorized by T-REX. You acknowledge that T-REX does not accept any form of liability for the content of the Customer Data or Deal Information, if any, or any document incorporated therein by reference, and/or any liability for damage arising from an investment in the Underlying Security.
8.9 The T-REX Platform is not incorporated into and does not form part of the Customer Data or Deal Information, if any.
8.10 Third Party User understands and acknowledges that T-REX has been compensated by various parties in connection with the preparation and distribution of the T-REX Platform, and the interests of those parties and T-REX may differ from your own.
8.11 You represent, warrant and covenant that (I) you will comply with all Applicable Laws with respect to your access to and use of the T-REX Platform; and (ii) you have received all third party consents and certifications necessary for the transmission of Data to the T-REX Platform, if applicable. T-REX is not responsible for ensuring that the T-REX Platform, or any portion thereof, is in compliance with your criteria for legal compliance.
8.12 You acknowledge that T-REX and others including without limitation, Third Party Users will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements in this Section 8 and otherwise in this Agreement. You agree that, if any of the acknowledgments, representations or warranties are no longer accurate, you will promptly notify T-REX. If you represent an entity on whose behalf you are making such representations and warranties, you represent that you have full power and authority to make such acknowledgments, representations, and agreements on behalf of such entities.
9. Indemnification and Liability.
9.1 By User. If instructed by T-REX, you shall be responsible for defending, and in any event indemnifying, and holding harmless T-REX and its affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all claims arising out of or incurred as a result of: (i) any breach of this Agreement by you; (ii) your use of the T-REX Platform or any component thereof; and/or (iii) any modification or unauthorized use of Data.
9.2 Process. T-REX will give you prompt notice of any claim under Section 9.1. We may elect to either defend the claim at your sole cost or otherwise allow you or if you are a Customer User, Customer to defend the claim. We shall have the right, at your cost, to employ counsel of its choice to participate in the defense of such claim.
9.3 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, T-REX WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE T-REX PLATFORM AND ANY SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF T-REX IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. T-REX’s TOTAL CUMULATIVE AND AGGREGATE LIABILITY TO YOU WILL NOT EXCEED $500.
10.1 Assignment. The Agreement and all rights and obligations hereunder are not assignable or transferable by you without the prior written consent of T-REX, and any attempt to do so shall be void. This Agreement will bind the parties’ successors and permitted assigns.
10.2 Force Majeure. T-REX will not be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control including without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, governmental orders and acts (including government-imposed travel restrictions and quarantines), pandemics, material changes in law, war, terrorism, riot, or acts of God.
10.3 Independent Contractor. You agree and acknowledge that you and T-REX are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between you and T-REX. You will not have or represent that you have the right, power or authority to bind, contract or commit T-REX or to create any obligation on behalf of T-REX without its express prior written consent.
10.4 Miscellaneous. Notices to you shall be sent to the address that T-REX has on file with your user account. You agree that T-REX may communicate with you electronically regarding administrative, security and other issues relating to your use of the T-REX Platform. Notwithstanding anything to the contrary herein, you agree that any notices, agreements, disclosures or other communications that T-REX sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The foregoing does not affect your statutory rights. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement. IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, no other person or entity shall be a direct or indirect beneficiary of nor shall have any direct or indirect cause of action or claim in connection with this Agreement. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege. This Agreement supersedes all prior discussions, understandings and agreements with respect to its subject matter. This Agreement may only be modified by T-REX as set forth in the fourth paragraph of this Agreement, or by the parties in a writing signed by both parties.
11. Legal Disputes.
11.1 These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 12 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and T-REX are not required to arbitrate will be the state and federal courts located in the County of New York, New York, and you and T-REX each waive any objection to jurisdiction and venue in such courts.
12. Dispute Resolution.
12.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and T-REX agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Agreement, and that you and T-REX are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Agreement.
12.2 Exceptions. As limited exceptions to Section 1(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
12.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
12.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
12.5 Injunctive and Declaratory Relief. Except as provided in Section 12(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
12.6 Class Action Waiver. YOU AND T-REX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
12.7 Effect of Changes on Arbitration. Notwithstanding anything to the contrary int these Terms, if T-REX changes any of the terms of this Section 12 “Dispute Resolution” after the date you most recently accepted these Agreement, you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of T-REX’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and T-REX in accordance with the terms of this Section 12 “Dispute Resolution” as of the date you most recently accepted these Agreement.
12.8 Severability. With the exception of any of the provisions in Section 1(e) of these Agreement (“Class Action Waiver“), if an arbitrator or court of competent jurisdiction decides that any part of these Agreement is invalid or unenforceable, the other parts of these Agreement will still apply.
I hereby certify, to the best of my knowledge and after due inquiry, that I am a “qualified institutional buyer” within the meaning of Rule 144A of the Securities Act of 1933, as amended (the “Securities Act”) because I am, or am the duly authorized representative of one of the following entity or entities.
One of the following entities, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
- Any insurance company as defined in section 2(a)(13) of the Securities Act;
- Any small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
- Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees;
- Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974;
- Any trust fund whose trustee is a bank or trust company and whose participants are exclusively plans of the types identified in previous two paragraphs, except trust funds that include as participants individual retirement accounts or H.R. 10 plans.
- Any business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
- Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation (other than a bank as defined in Section 3(a)(2) of the Act or a savings and loan association or other institution referenced in Section 3(a)(5)(A) of the Act or a foreign bank or savings and loan association or equivalent institution), partnership, or Massachusetts or similar business trust; and
- Any investment adviser registered under the Investment Advisers Act.
- Any dealer registered pursuant to Section 15 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer, provided that securities constituting the whole or a part of an unsold allotment to or subscription by a dealer as a participant in a public offering shall not be deemed to be owned by such dealer;
- Any dealer registered pursuant to Section 15 of the Exchange Act acting in a riskless principal transaction on behalf of a qualified institutional buyer;
- Any investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), acting for its own account or for the accounts of other qualified institutional buyers, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies. “Family of investment companies” means any two or more investment companies registered under the Investment Company Act, except for a unit investment trust whose assets consist solely of shares of one or more registered investment companies, that have the same investment adviser (or, in the case of unit investment trusts, the same depositor), Provided That, for purposes of this section:
a) Each series of a series company (as defined in Rule 18f-2 under the Investment Company Act) shall be deemed to be a separate investment company; and
b) Investment companies shall be deemed to have the same adviser (or depositor) if their advisers (or depositors) are majority-owned subsidiaries of the same parent, or if one investment company’s adviser (or depositor) is a majority-owned subsidiary of the other investment company’s adviser (or depositor);
- Any entity, all of the equity owners of which are qualified institutional buyers, acting for its own account or the accounts of other qualified institutional buyers; and
- Any bank as defined in Section 3(a)(2) of the Securities Act, any savings and loan association or other institution as referenced in Section 3(a)(5)(A) of the Securities Act, or any foreign bank or savings and loan association or equivalent institution, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under the rule in the case of a U.S. bank or savings and loan association, and not more than 18 months preceding such date of sale for a foreign bank or savings and loan association or equivalent institution.
- In determining the aggregate amount of securities owned and invested on a discretionary basis by an entity, the following instruments and interests shall be excluded: bank deposit notes and certificates of deposit; loan participations; repurchase agreements; securities owned but subject to a repurchase agreement; and currency, interest rate and commodity swaps.
- The aggregate value of securities owned and invested on a discretionary basis by an entity shall be the cost of such securities, except where the entity reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published. In the latter event, the securities may be valued at market for purposes of this section.
- In determining the aggregate amount of securities owned by an entity and invested on a discretionary basis, securities owned by subsidiaries of the entity that are consolidated with the entity in its financial statements prepared in accordance with generally accepted accounting principles may be included if the investments of such subsidiaries are managed under the direction of the entity, except that, unless the entity is a reporting company under Section 13 or 15(d) of the Exchange Act, securities owned by such subsidiaries may not be included if the entity itself is a majority-owned subsidiary that would be included in the consolidated financial statements of another enterprise.
- For purposes of these representations, “riskless principal transaction” means a transaction in which a dealer buys a security from any person and makes a simultaneous offsetting sale of such security to a qualified institutional buyer, including another dealer acting as riskless principal for a qualified institutional buyer.
- For purposes of these representations, “effective conversion premium” means the amount, expressed as a percentage of the security’s conversion value, by which the price at issuance of a convertible security exceeds its conversion value.
- For the purposes of this section, “effective exercise premium” means the amount, expressed as a percentage of the warrant’s exercise value, by which the sum of the price at issuance and the exercise price of a warrant exceeds its exercise value.